Citation Nr: 9805084
Decision Date: 02/20/98 Archive Date: 03/02/98
DOCKET NO. 95-19 012 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for a chronic stomach
disorder.
ATTORNEY FOR THE BOARD
D. Jeffers
INTRODUCTION
The veteran served on active duty from October 1965 to
October 1967.
This appeal arose from a November 1994 rating decision of the
Atlanta, Georgia, Department of Veterans Affairs (VA),
Regional Office (RO), which denied entitlement to service
connection for a chronic stomach disorder. The veteran filed
a timely notice of disagreement (NOD), and was issued a
statement of the case (SOC) in February 1995. The veteran
failed to report for his scheduled October 1997 hearing
before the RO’s Hearing Officer.
In reviewing the record, the Board notes that the veteran’s
VA Form 23-22 (now referred to as VA Form 21-22, Appointment
of Veterans Service Organization as Claimant’s
Representative) listed both the American Legion and the
Georgia Department of Veterans Affairs as his accredited
representative. Under the applicable laws and regulations, a
specific claim may be prosecuted at any one time by only one
recognized organization, attorney, agent or other person
properly designated to represent the appellant. 38 U.S.C.A.
§ 7105(b)(2) (West 1991); 38 C.F.R. §§ 14.631, 20.601 (1996).
As 38 C.F.R. § 19.9 (1996) has been recently changed to
reflect that the Board is no longer required to remand cases
to the RO, in the first instance, for purposes of
clarification of representation, the Board sent a letter to
the veteran on December 4, 1997, at his last known address,
asking him for clarification of the same. The letter
specifically informed the veteran that processing of his
appeal would be suspended for 30 days from the date of this
letter. If he did not respond within that time, the Board
would then proceed to review without representative. To
date, the veteran has failed to respond. As such, the Board
concludes that the veteran wishes to proceed without
representative and reviews this claim for the first time on
the merits.
REMAND
VA has a duty to assist the veteran in the development of all
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1996). This includes the duty
to obtain VA examinations which provide an adequate basis
upon which to determine entitlement to the benefit sought, as
well as the duty to obtain all relevant treatment records
referred to by the veteran. Littke v. Derwinski, 1 Vet. App.
90 (1991). Examinations must also address the rating
criteria in relation to the veteran’s symptoms. Johnson v.
Brown, 9 Vet. App. 7 (1996). Consequently, examinations by
specialists are recommended in those cases which present a
complicated disability picture. Hyder v. Derwinski, 1 Vet.
App. 221 (1991).
The United States Court of Veterans Appeals (Court) has
stated that an opinion regarding current health or degree of
disability is very probative, particularly if supported by
clinical data, because the doctor has personal knowledge (the
examination). See Guerrieri v. Brown, 4 Vet. App. 467, 471-
72 (1993) and generally Layno v. Brown, 6 Vet. App. 465, 470
(1995). In this regard, the Board notes that the veteran
maintains that symptomatology attributable to his stomach
disorder was first noted in service. Further review of the
record reflects that the veteran’s NOD was received by the RO
in December 1994, at which time he contended that contrary to
the RO’s determination, he has been treated at the VA Medical
Center (VAMC), at Tuskegee, Alabama, for an ulcerated stomach
and passing blood by stool and mouth. Additionally, the
veteran indicated that he had attached six (6) VA Forms 21-
4142 (Doctor’s Treatment Release of Information) for all of
the doctors that have treated him for stomach problems.
Unfortunately, the medical release forms do not appear to
have been associated with the veteran’s claims folder.
Clearly, additional assistance is necessary.
As noted above, the veteran has failed to submit a new VA
Form 21-22 or VA Form 22a authorizing one organization or
person to represent him before the Board. As this case is
already being remanded to the RO for further development, the
Board finds that the veteran should be afforded an additional
opportunity to authorize one organization or person to
represent him before the Board (emphasis).
Thus, to ensure that VA has met its duty to assist the
veteran in developing all facts pertinent to his claim, the
case is REMANDED to the RO for the following development:
1. The RO should afford the veteran an
opportunity to list the names and current
addresses of any private medical
providers that treated him for the
stomach disorder at issue. The veteran
should also provide information as to the
dates of treatment and locations of any
VA medical facilities that have treated
him for the same. The RO should obtain
appropriate Medical Records Release Forms
from the veteran so that VA may assist
him in obtaining these records.
2. The RO should then contact the listed
medical providers and VA medical
facilities, if any, and request that they
provide legible copies of all of the
veteran’s treatment records, including x-
rays, laboratory tests and/or special
studies performed. These records should
then be associated with the claims
folder.
3. The RO should also send the veteran
copies of VA Forms 21-22 and 22a, in
order to afford him an additional
opportunity to authorize one organization
or person to represent him before the
Board. The Board reminds the veteran
that this request must be associated with
his claims folder or received by the
Board prior to the processing of his
appeal, or the Board will presume that he
desires to proceed without
representation. A copy of the letter
from the RO informing the veteran of the
same must be associated with the claims
folder.
4. Once the above-requested information
is received, positive or negative, and
associated with the claims folder, the RO
should schedule the veteran for a
gastrointestinal examination to be
performed by an appropriate VA
specialist. This study must be conducted
in accordance with the VA Physician's
Guide for Disability Evaluation
Examinations. Therefore, the veteran’s
claims folder should be made available to
and independently reviewed by the
specialist prior to examination. X-rays
and/or other diagnostic studies should be
done, as deemed appropriate by the
examiner. This specialist is asked, in
turn, to render opinions as to:
a. the nature, extent and etiology
of pathology of the veteran’s current
gastrointestinal disorder; and
b. to the extent medically
ascertainable, whether the veteran’s
current gastrointestinal disorder(s), if
any, may be clearly dissociated from his
active duty service.
5. Following completion of the above
action, the RO must review the claims
folder and ensure that all of the
foregoing development has been conducted
and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination report. If the examination
report does not include fully detailed
descriptions of pathology and all test
reports, special studies or adequate
responses to the specific joint opinions
requested, that report must be returned
for corrective action. 38 C.F.R. § 4.2
(1996) (“if the [examination] report
does not contain sufficient detail, it is
incumbent upon the rating board to return
the report as inadequate for evaluation
purposes.”). See Green v. Derwinski, 1
Vet. App. 121, 124 (1991); Abernathy v.
Principi, 3 Vet. App. 461, 464 (1992);
and Ardison v. Brown, 6 Vet. App. 405,
407 (1994).
6. After the above actions have been
completed, the RO must then re-adjudicate
the veteran’s service connection claim.
If the determination remains unfavorable
to the veteran in any way, he should be
furnished a supplemental statement of the
case in accordance with 38 U.S.C.A.
§ 7105 (West 1991), which includes a
summary of additional evidence submitted
and any additional applicable laws and
regulations. This document should
include detailed reasons and bases for
the decisions reached. Thereafter, the
veteran and his representative, if any,
should be afforded the opportunity to
respond thereto.
Thereafter, the case should then be returned to the Board for
further appellate consideration, if otherwise in order. By
this REMAND the Board intimates no opinion, either factual or
legal, as to the ultimate determination warranted in this
case. The purpose of the REMAND is to further develop the
record. No action is required of the veteran until he
receives further notice.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
A. BRYANT
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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